Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 1 of 22
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`
`10TALES, INC.,
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`
`
`
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`TIKTOK INC., TIKTOK PTE. LTD.,
`BYTEDANCE LTD., and BYTEDANCE
`INC.,
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendants.
`
`
`
`
`Case No. 6:20-cv-810
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`JURY TRIAL DEMANDED
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`§
`§
`§
`§
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`§
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
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`Pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), Plaintiff 10Tales, Inc.
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`(“10Tales”), by and through its attorneys, files this First Amended Complaint as a matter of course
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`against Defendants TikTok Inc. (“TI”), TikTok Pte. Ltd. (“TPL”), ByteDance Ltd. (“BL”), and
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`ByteDance Inc. (“BI”) (collectively, “Defendants”) and hereby alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`This is an action for infringement of U.S. Patent No. 8,856,030 entitled “Method,
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`System and Software for Associating Attributes within Digital Media Presentations”
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`(“the ’030 patent,” attached as Exhibit 1), arising under the Patent Laws of the United States,
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`35 U.S.C. §§ 1, et seq.
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`2.
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`10Tales—and its founder David Russek—is the pioneering developer of innovative
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`technology used to deploy advanced storytelling through the use of 10 second videos submitted by
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`a network of friends that become shared experiences among the friend network. 10Tales’
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`technology has received numerous accolades from the entertainment industry, including, for
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`1
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 2 of 22
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`example, the Mobile Excellence Awards. See http://10tales.co/10tales.html. David Russek is the
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`inventor of the ’030 patent.
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`
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`3.
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`10Tales alleges that Defendants infringe the ’030 patent, either literally or under
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`the doctrine of equivalents, by making and using a system that infringes at least claim 1 of the ’030
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`patent, including, inter alia, the “recommendation system” used in connection with the TikTok
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`“For You” feed, and indirectly by inducing users of the TikTok software application and website
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`(hereinafter, “app” or “TikTok app”) to use the infringing recommendation system.
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`THE PARTIES
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`4.
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`Plaintiff 10Tales, Inc. is a Delaware corporation that maintains its principal place
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`of business at 18 Coal Street, Middleport, Pennsylvania 17953.
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`5.
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`On information and belief, Defendant TI is a California corporation with a regular
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`and established place of business in Austin, Texas, and a registered agent for service of process in
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`this District at Corporation Service Company d/b/a CSC-Lawyers Incorporating Service
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`Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701.
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`6.
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`On information and belief, Defendant TPL is a Singapore corporation with its
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`principal place of business at 8 Marina View Level 43 Asia Square Tower 1, Singapore 018960.
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`7.
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`On information and belief, Defendant BL is a Cayman Islands corporation with
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`offices in the United States, including this District.
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`8.
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`On information and belief, Defendant BI is a Delaware corporation with a regular
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`and established place of business in this District.
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`2
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 3 of 22
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`DEFENDANTS, TIKTOK USERS, AND THIS DISTRICT
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`9.
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`BL is the parent and owner of TI, BI, and TPL. Exh. 2; Exh. 3, Complaint, TikTok
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`Inc. and ByteDance Ltd. v. Donald J. Trump and Wilbur L. Ross, Jr., Civil Case No. 20-cv-2658,
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`U.S. District Court for the District of Columbia (hereinafter, the “DC Litigation”), D.E. 1, ¶¶ 19,
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`37; Certificate Rule pursuant to D.D.C. L.R. 26.1, DC Litigation, D.E. 2 (D.D.C.); Exh. 4,
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`Plaintiffs’ Amended Corporate Disclosure Statements, ByteDance, Inc., TikTok, Inc., and Tiktok
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`Pte. Ltd. v. Triller, Inc., Case No. 3:20-cv-7572, D.E. 10 (N.D. Cal.); Exh. 5, Notice of Interested
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`Parties, TikTok Inc. and ByteDance Ltd. v. Donald J. Trump and Wilbur L. Ross, Jr., Civil Case
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`No. 20-cv-7672, D.E. 3 (C.D. Cal.).
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`10.
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`Defendant BL is a global company incorporated in the Cayman Islands, with offices
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`in the United States, China, Singapore, and the United Kingdom, among others. Exh. 3,
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`Complaint, DC Litigation, D.E. 1, ¶ 13.
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`11.
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`BL developed the TikTok app and operates and controls the TikTok app in the
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`United States through subsidiaries and affiliates such as TI, BI, and TPL. Exh. 3, Complaint, DC
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`Litigation, D.E. No. 1, ¶¶ 13, 20. See, e.g., https://support.tiktok.com/en/using-tiktok.
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`12.
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`BL operates the TikTok app throughout the United States, including within this
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`District. Exh. 3, Complaint, DC Litigation, D.E. No. 1, ¶ 13. See id. at ¶ 1 (“Tiktok[ is] a mobile
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`software application that 100 million Americans use”).
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`13.
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`BL is the owner of a number of U.S. trademark registrations and applications,
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`including, but not limited to, registration nos. 6069518, 5981213, 5981212, 5653614, and 5974902
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`and application serial nos. 88386254, 88386243, and 88260950. All of these registrations and
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`applications were filed in the name of BL, and all include variants of the “TikTok” name, and all
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`3
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 4 of 22
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`claim use in commerce pursuant to 15 U.S.C. § 1051(a)(1), filed by BL or by a BL subsidiary or
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`licensee. See, e.g., Exhs. 6-10 (trademark registrations); Exhs. 11-13 (trademark applications).
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`14.
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`On information and belief, BL controls the majority of the shares or other
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`ownership interest in TI, BI, and TPL and controls or attempts to control the activities of each of
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`them.
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`15.
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`On information and belief, BL controls the general policies and administration of
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`TI, BI, and TPL.
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`16.
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`On information and belief, Defendants operate BL’s TikTok business in the United
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`States as a joint enterprise. See, e.g., https://www.tiktok.com/transparency?lang=en (“TikTok is a
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`flagship product of [BL]”); id. (“TikTok does business through subsidiaries of [BL]”).
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`17.
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`On information and belief, BL shares common officers and/or directors with TI.
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`For example, Vanessa Pappas has testified that she is the “head of TikTok, Inc. and interim head
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`of the global TikTok business for ByteDance Ltd.,” (Exh. 14, Declaration of Vanessa Pappas, DC
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`Litigation, D.E. 15-3, ¶ 1), and purports to speak on behalf of TI and BL. For another example,
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`Roland Cloutier has testified that he is the Global Chief Security Officer for TI and that he provides
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`cyber risk and data security support for both TI and BL, and purports to speak for both. Exh. 15,
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`Declaration of Roland Cloutier, DC Litigation, D.E. No. 15-2, ¶¶ 1-3. Among other things, Mr.
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`Cloutier testified that BL personnel provide TI engineering functions that allow BL personnel to
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`access encrypted TikTok user data. Id. at ¶¶ 10, 14. For another example, Nicola Raghavan, who
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`purports to be an employee of TI, has filed a declaration in which she makes statements on behalf
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`of both TI and BI. [D.E. No. 23-2 ¶¶ 3, 10-12, 15, 16.] For another example, Erich Andersen is
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`the Global General Counsel for BL and TI. Exh. 16. On information and belief, BL’s founder,
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`4
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`Zhang Yiming is an officer or director, directly or through a surrogate, of each of the Defendants.
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`On information and belief, Defendants share additional officers and employees.
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`18.
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`Ramiro Sarabia, a TI employee, states on his LinkedIn profile that he is the Brand
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`Partnerships Manager at TikTok, Inc. and that he is employed in Austin, Texas. Exh. 17. Other
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`individuals associated with TikTok characterized themselves as being employed by TikTok and
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`ByteDance. They do not state that they are employed by TikTok or ByteDance. For example,
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`Blake Chandlee refers to himself as the VP of Global Business Solutions “at ByteDance / TikTok.”
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`Exh. 18. Ashley Elizabeth Brown refers to herself as the “office administrator at ByteDance /
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`TikTok.” Exh. 19. TI has asserted in this action that employees in the Austin office are BI, not
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`TI employees, but those employees refer to themselves as “TikTok” employees, not BI employees.
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`See, e.g., Exhs. 17-19, 20. On information and belief, TI employees perform services for BI, and
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`BI employees perform services for TI.
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`19.
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`BI has actively solicited the hiring of employees in this District as “ByteDance”
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`employees through the GlassDoor platform and on the www.bytedance.com website. Exhs. 21A,
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`21B. Such solicitations are separate from solicitations for “TikTok” employees. Exhs. 22A, 22B.
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`20.
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`On information and belief, TI conducts operations out of the BI offices and/or
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`offices shared with BI in Austin and therefore has a regular and established place of business in
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`this District. [D.E. 23-2, ¶ 11.]
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`21.
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`TI, BI, and TPL all use the TikTok marks as agents for BL in the manufacture, sale,
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`offer for sale, and/or use of the TikTok app and in the inducement of others to use the TikTok app,
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`including in this District.
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`5
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 6 of 22
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`22.
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`Defendants actively encourage and induce users to download and use the TikTok
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`app according to instructions for such use made available to users by Defendants.
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`https://support.tiktok.com/en/using-tiktok.
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`23.
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`Defendants instruct users of the TikTok app to infringe through training videos,
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`demonstrations, brochures, and users guides. See, e.g., Exh. 23, First Amended Complaint,
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`ByteDance, Inc., TikTok, Inc., and TikTok Pte. Ltd. v. Triller, Inc., Case No. 3:20-cv-7572, D.E.
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`9, ¶ 5 (N.D. Cal.).
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`24.
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`On information and belief, Defendants intend that app users will use the app
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`pursuant to instructions and videos for use of the app, and other tutorials on how to use the app.
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`25.
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`Defendants operate the TikTok app in the United States, including in this District.
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`Exh. 3, Complaint, D.C. Litigation, D.E. 1, ¶¶ 1, 20.
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`26.
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`On information and belief, employees of Defendants, acting in the course and scope
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`of their employment, use and have used the TikTok app in this District, including at their offices
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`within this District.
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`27.
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`BI “makes” the TikTok app. Exh. 23, at ¶ 7, 23. TI and BI are both responsible
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`for developing and providing the TikTok app. Id., at ¶ 7. TI and BI both support the TikTok app
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`in the U.S. [D.E. 23-1 ¶¶ 3, 15.]
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`6
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 7 of 22
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`28.
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`On July 8, 2020,1 the Apple App Store listed TI as the seller of the TikTok app:
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`See https://web.archive.org/web/20200708064126if_/https:/apps.apple.com/lc/app/tiktok-make-
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`your-day/id835599320.
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`29.
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`The July 8, 2020 archive.org “Privacy Policy” link states that the TikTok app is
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`provided and controlled by TI, and references to “TikTok” are synonymous with references to
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`
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`TI:
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`1 As of the date of this First Amended Complaint, the Apple App Store lists TPL, not TI, as the
`seller of the TikTok app.
`
`
`See https://apps.apple.com/us/app/tiktok-it-starts-with-you/id835599320. Further, the “Privacy
`Policy” and “Terms of Service” links confirm that the TikTok app is provided and controlled by
`TI, and that references to “TikTok” are references to TI. https://www.tiktok.com/legal/privacy-
`policy; https://www.tiktok.com/legal/terms-of-use?lang=en.
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`7
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 8 of 22
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`See https://web.archive.org/web/20200708054104if_/https:/www.tiktok.com/legal/privacy-
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`policy?lang=en.
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`30.
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`The “Terms of Service” link provided in the “Privacy Policy” link confirms that
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`references to “TikTok” are synonymous with references to TI:
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`
`
`
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`See https://web.archive.org/web/20200708054107if_/https:/www.tiktok.com/legal/terms-of-
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`use?lang=en.
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`31.
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`The Terms of Service further provide that the Terms “form a legally binding
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`agreement between you and [TI],” that the user can access the TikTok app only in compliance
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`with the Terms of Service, and that by using the TikTok app the user agrees to the Terms of
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`8
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 9 of 22
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`Service. Id. The Terms of Service expressly grant the user the right to access and use the
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`TikTok app. Id.
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`32.
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`The TikTok app has been widely distributed in this District by BL through its
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`agents, including TI and TPL, using the Apple and Android App stores. For example, in July
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`2020, Baylor University announced that it had a TikTok account. Exh. 24.
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`
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`See https://www2.baylor.edu/baylorproud/2020/07/introducing-baylors-tiktok-account-a-new-
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`fun-way-to-engage-with-future-bears/.
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`33.
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`In July 2020, San Antonio Magazine reported on a number of local teens who have
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`become famous using TikTok. Exh. 25. On September 1, 2020, MY SA reported on “5 TikTok
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`accounts to follow for San Antonio flavor.” Exh. 26. Use of the TikTok app in this District is
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`extensive. See, e.g., Exhs. 27-32.
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`9
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 10 of 22
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`34.
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`On or about August 24, 2020, TI and BL filed a complaint in the Central District
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`of California seeking to enjoin President Trump’s ban on the TikTok app in the United States.
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`Exh. 33, Complaint, TikTok Inc. and ByteDance Ltd. v. Donald J. Trump and Wilbur L. Ross, Jr.,
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`Civil Case No. 20-cv-7672, D.E. 1 (C.D. Cal.). On the same day, TI (not BI) issued a press release
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`stating that it had filed the California complaint, providing quotes from the California complaint,
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`and stating that TI was hiring employees through the United States, including in Texas:
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`[O]ur more than 1,500 employees across the US pour their hearts into building this
`platform every day, with 10,000 more jobs planned in California, Texas, New
`York, Tennessee, Florida, Michigan, Illinois, and Washington State[.]
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`Exh. 34 (emphasis added).
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`JURISDICTION AND VENUE
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`35.
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`10Tales brings this action for patent infringement under the patent laws of the
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`United States, 35 U.S.C. §§ 271, et seq. This Court has subject matter jurisdiction pursuant to
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`28 U.S.C. §§ 1331 and 1338(a).
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`36.
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`37.
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`The amount in controversy exceeds $75,000.
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`This Court has personal jurisdiction over Defendants by virtue of Defendants’
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`systematic and continuous contacts with this District.
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`38.
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`This Court has personal jurisdiction over Defendants by virtue of, inter alia, the
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`fact that Defendants have committed, aided, induced, and/or participated in the commission of the
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`tortious act of patent infringement that led to foreseeable harm to 10Tales in this District.
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`39.
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`On information and belief, Defendants are in the business of providing a video-
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`sharing social networking service through their app in this District, and offer products and/or
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`services, including those accused herein of infringement, to customers and potential customers
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`located in Texas and in this District. On information and belief, Defendants, Defendants’ agents
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`and/or subsidiaries distribute products directly to customers and through their partners and/or
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`10
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 11 of 22
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`intermediaries located in the State of Texas. On information and belief, Defendants derive
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`significant financial benefits through their business in Texas and in this District.
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`40.
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`On information and belief, the TikTok app has been downloaded over 175 million
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`times within the United States, with millions of those users of their products and services within
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`the State of Texas, many of whom reside within this District.
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`41.
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`In early 2020, TikTok leased space at the South by Southwest Center, at 14th and
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`Lavaca, in Austin, Texas and had approximately 100 employees in that office. Exh. 35. On
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`information and belief, Defendants have a regular and established place of business in this District,
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`including offices in Austin, Texas, which Defendants, Defendants’ agents or subsidiaries rely upon
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`and use to support their activities within this District that result in patent infringement.
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`42.
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`Blake Chandlee, who is an authorized corporate signatory for TI and filed an
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`Application for Registration of a Foreign For Profit Corporation with the Texas Secretary of State
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`on behalf of TI,2 works out of the TI Austin office. Exh. 35. On or about August 8, 2020, Blake
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`Chandlee, VP of TikTok (a/k/a TI) Global Business Solutions, states:
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`We’re proud to build our presence in Austin and be a part of the thriving business
`and tech community locally. The Austin community embodies the same creative
`and entrepreneurial spirit that defines the TikTok community and we are going to
`do all we can to ensure our company’s future in Texas and the U.S. Our goal is to
`be here for years to come for our users, our creators and for the 1,500 people we
`currently employ in America, the 10,000 people we intend to hire here, including
`the hundreds of jobs we’re bringing to Austin.
`
`Exh. 38.
`
`
`2 On November 15, 2019, Blake Chandlee, on behalf of TI, filed its Application for Registration
`with the Texas Secretary of State “subject to the penalties imposed by law . . . . [and that
`Chandlee is] certifie[d] under penalty of perjury that [he] is authorized under the provisions of
`law governing the entity to execute the filing instrument.” Exh. 36. Then, on January 6, 2020,
`Blake Chandlee, on behalf of TI, filed a Certificate of Correction with the Texas Secretary of
`State. Exh. 37.
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`43.
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`On information and belief, and as evidenced by Exhibit 22A and Exhibit 22B,
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`Defendants have hired and continue to hire numerous employees within this District,3 at least some
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`of whom have, are, and will in the future support Defendants’ infringing activities within this
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`District that will generate substantial revenue.
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`44.
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`On information and belief Defendants maintain facilities within this District and
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`have committed acts within this District that give rise to this action and have established minimum
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`contacts with this forum such that the exercise of jurisdiction over Defendants would not offend
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`traditional notions of fair play and substantial justice. Defendants have committed and continue
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`to commit acts of infringement in this District by, among other things, providing their products
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`and/or services that infringe the asserted patent.
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`45.
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`This court has personal jurisdiction over TPL and BL. As foreign corporations,
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`personal jurisdiction exists over TPL and BL pursuant to Federal Rule of Civil Procedure 4(k)(2).
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`In addition, personal jurisdiction exists over TPL and BL based on the fact that they are responsible
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`for causing patent infringement to occur in the State of Texas and this District.
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`46.
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`This Court has specific personal jurisdiction over Defendants in this action pursuant
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`to due process and the Texas Long Arm Statute because the claims asserted herein arise out of or
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`are related to Defendants’ substantial business in this forum and voluntary contacts with this
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`forum, such voluntary contacts, directly or through their subsidiaries and agents, include but are
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`not limited to: (i) at least a portion of the actions complained of herein; (ii) purposefully and
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`voluntarily placing one or more infringing products and/or services into this District and into the
`
`
`3 As stated in TI’s Terms of Service and consistent with TI’s August 24 press release, “TikTok”
`refers to TI. See supra, at ¶ 30. The TI ads for “TikTok” employees on GlassDoor are separate
`from ads placed for “ByteDance” employees. Compare Exhs. 21A with 22A. Likewise,
`“TikTok” has advertised to hire employees in Austin on the tiktok.com website. Exh. 22B.
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 13 of 22
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`stream of commerce with the intention and expectation that they will be used by consumers and
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`end users in this District; or (iii) regularly doing or soliciting business, engaging in other persistent
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`courses of conduct, or deriving substantial revenue from goods and services, including the
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`infringing products and/or services, provided to customers in Texas and in this District.
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`Defendants are subject to the Court’s personal jurisdiction at least due to their distribution of
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`products and/or services within Texas and the Western District of Texas. Within this state,
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`Defendants have used the patented inventions thereby committing, and continuing to commit, acts
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`of patent infringement alleged herein. BL developed the TikTok app, placed the app in the stream
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`of commerce, and acting in concert with TI, TPL, and BI, caused the app to be distributed in this
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`District with the intent that it be used pursuant to the instructions, videos, and commentary
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`provided by Defendants. In addition, Defendants have derived revenues from their infringing acts
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`occurring within the Western District of Texas. Further, Defendants are subject to the Court’s
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`jurisdiction because Defendants solicit and provide products and/or services to persons or entities
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`in Texas and the Western District of Texas as evidenced by: (i) regularly doing or soliciting
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`business; (ii) engaging in other persistent courses of conduct; and (iii) deriving substantial revenue
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`from goods and services. Defendants have committed such purposeful acts and transactions in
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`Texas such that it reasonably should know and expect that it could be haled into this Court because
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`of such activity.
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`47.
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`Relative to patent infringement, Defendants have committed and continue to
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`commit acts in violation of 35 U.S.C. § 271, and have made and used the infringing system in this
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`state, including in this District, and otherwise engaged in infringing conduct within and directed
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`at, or from, this District. Such infringing system, namely the TikTok “recommendation system,”
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`has been and continues to be used in this District and the infringing conduct has caused, and
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`13
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 14 of 22
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`continues to cause, injury to 10Tales, including injury suffered in this District. These are
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`purposeful acts and transactions in this state and this District such that Defendants reasonably
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`should know and expect that it could be haled into this Court because of such activities.
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`48.
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`Venue is proper in this Court under 28 U.S.C. §§ 1391 and 1400(b) for at least the
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`reasons set forth above, including but not limited to: a substantial part of the events or omissions
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`giving rise to the 10Tales claims occurred in this District; Defendants have committed acts of
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`infringement in this District; and Defendants have a regular and established place of business in
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`this District. Defendants TI and BI are registered to do business in the State of Texas,4 and on
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`information and belief, have transacted business in this District and have committed acts of
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`infringement in this District. Defendants conduct business in this District, including using the
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`infringing system in this District, and inducing TikTok end users and customers to use the
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`infringing system in this District. On information and belief, Defendants maintain offices in this
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`District, hire and maintain employees in this District, and conduct business in this District
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`consistent with their substantial physical presence in this District.
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`49.
`
`TPL and BL are foreign corporations, and venue is therefore proper in this District
`
`because pursuant to 28 U.S.C. § 1391(c)(3), foreign defendants are subject to venue in any district
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`in the United States for this additional reason.
`
`
`4 On August 14, 2020, TI filed a Statement of Change of Registered Office / Agent with the
`Texas Secretary of State and identifying a registered agent business address in Austin, Texas,
`signed by Zhao Liu as president of TI. Exh. 39. On January 7, 2020, BI filed an Application for
`Registration of a Foreign For Profit Corporation with the Texas Secretary of State and again
`identifying a registered agent in Austin, Texas, signed by Zhao Liu as director of BI and certified
`by Blake Chandlee. Exh. 40. And again, on January 13, 2020, BI filed a Certificate of
`Correction with the Texas Secretary of State, signed by Blake Chandlee and listing Blake
`Chandlee and Zhao Liu as “directors” of BI. Exh. 41.
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`14
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 15 of 22
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`COUNT I – INFRINGEMENT OF THE ’030 PATENT
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`50.
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`10Tales re-alleges and incorporates by reference the allegations set forth in
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`paragraphs 1-49 as if fully set forth herein.
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`51.
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`On October 7, 2014, the ’030 patent, entitled “Method, System and Software for
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`Associating Attributes within Digital Media Presentations” was duly and legally issued by the
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`United States Patent and Trademark Office. A true and correct copy of the ’030 patent is attached
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`as Exhibit 1.
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`52.
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`10Tales is the owner of the ’030 patent by virtue of an assignment effective as of
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`March 29, 2015. A true and correct copy of that assignment agreement is attached as Exhibit 42.
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`53.
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`54.
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`Pursuant to 35 U.S.C. § 282, the ’030 patent is presumed valid.
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`Defendants have knowledge of the ’030 patent since at least upon the date the
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`marking was posted on 10Tales’ mobile device apps for iOS and Android, which was on or before
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`June 23, 2020.
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`55.
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`Defendants have had knowledge of the ’030 patent since at least upon the date the
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`marking was posted on http://10tales.co/, which was on or before June 23, 2020.
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`Direct Infringement (35 U.S.C. § 271(a))
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`56.
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`Use of the TikTok app in this District constitutes direct infringement of one or more
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`claims of the ’030 patent.
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`57.
`
`Defendants have been and now are directly infringing the ’030 patent within the
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`United States by making and using systems that infringe, either directly or under the doctrine of
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`equivalents, at least claim 1 of the ’030 patent, including, inter alia, the “recommendation system”
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`used in connection with the TikTok “For You” feed.
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 16 of 22
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`58.
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`Claim 1 of the ’030 patent claims a server-based system that associates user
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`attributes with digital media attributes and creates a user-specific composite digital media display.
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`59.
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`The system in claim 1 of the ’030 patent reflects technological improvements upon
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`the state of the art at the time. The technological improvements and solutions described and
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`claimed in the ’030 patent were not conventional or generic at the time of their respective
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`inventions. The inventions set forth in the claims of the ’030 patent involved novel and nonobvious
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`approaches to the problems and shortcomings prevalent in the art at the time. The inventions
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`claimed in the ’030 patent involve and cover more than just the performance of well-understood,
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`routine, and/or conventional activities known to the industry prior to the invention of the methods,
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`systems, and devices by the ’030 patent inventor.
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`60.
`
`For example, one significant improvement over the prior art was the teaching of
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`analyzing how a user interacts with other users in an online social network in order to determine
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`that user’s affinity for certain digital media content, and then teaching the use of a rule based
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`algorithm to use this information to create a user-specific composite digital media display for a
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`particular user.
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`61.
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`Upon information and belief, the “recommendation system” that Defendants both
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`commercially make and use in the United States and in this District in order to generate the user-
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`specific “For You” feeds does precisely what is claimed by the system of the ’030 patent and
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`constitutes an act of direct infringement of at least claim 1 of the ’030 patent.
`
`62.
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`First, according to Defendants’ own representations and as evidenced by Exhibit
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`43, one of the “defining features of the TikTok platform” is the fact that each “For You” feed is a
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`user-specific composite digital media display—that is, “each person’s feed is unique and tailored
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`16
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 17 of 22
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`to that specific individual.” See, e.g., Exh. 43 (June 18, 2020, news post from Defendants’ web
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`site entitled “How TikTok recommends videos #ForYou”). According to Defendant:
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`When you open TikTok and land in your For You feed, you’re presented with a
`stream of videos curated to your interests, making it easy to find content and
`creators you love. This feed is powered by a recommendation system that
`delivers content to each user that is likely to be of interest to that particular
`user. Part of the magic of TikTok is that there’s no one For You feed – while
`different people may come upon some of the same standout videos, each person’s
`feed is unique and tailored to that specific individual.
`
`See id. (emphasis added).
`
`63.
`
`Defendants also acknowledge that their “recommendation system” makes use of
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`user attributes from a social network system, such as information about content that the user shares
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`with others, accounts the user follows, and comments the user posts in order to select specific
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`video clips (user-specific digital media assets) to include in the user-specific feed (user-specific
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`composite digital media display). Id.
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`64.
`
`Additionally, as evidenced by Exhibit 44, when a user chooses to link to or sign up
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`for TikTok using that user’s social network (such as Facebook, Twitter, Instagram, or Google),
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`Defendants’ recommendation system collects user attribute information from these social media
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`services, including the user’s contact lists for these services and information relating to the user’s
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`use of those services. See Exh. 44 (Defendants’ privacy policy). Upon information and belief,
`
`Defendants’ “recommendation system” uses these user attributes collected from the social media
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`services in rule based algorithms to select the video clips to include in the user’s “For You” feed
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`which Defendants’ recommendation system tailors for that specific individual.
`
`65.
`
`Defendants make the infringing system in the United Stated by loading source code
`
`and/or programming instructions, including Defendants’ recommendation engine or digital media
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`assets (including media assets that Defendants refer to as “user content”) onto computer-readable
`
`17
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`Case 6:20-cv-00810-ADA Document 28 Filed 12/10/20 Page 18 of 22
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`storage medium that is operably connected to servers that Defendants either own or lease, and thus
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`directly infringe at least claim 1 of the ’030 patent.
`
`66.
`
`Defendants also directly infringe at least claim 1 of the ’030 patent by using the
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`infringing system in the United States, at least for testing of Defendants’ recommendation
`
`algorithm and for testing Defendants’ safety and security practices. When performing such testing,
`
`Defendants control and benefit from each claimed component of the patented invention, thus
`
`directly infringing at least claim 1 of the ’030 patent.
`
`Indirect Infringement (35 U.S.C. §§ 271(b))
`
`67.
`
`Defendants provide mobile device apps for iOS and Android to their users,
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`including to users in this District, who install those apps on their mobile devices, such as
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`smartphones and tablets. Similarly, TikTok’s webpage, https://www.tiktok.com/en, directs end
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`users and customers to download the app and/or to interact with the “For You” feed
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`instantaneously.
`
`68.
`
`TikTok end users and customers put the infringing system as a whole inter service,
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`that is, TikTok end users and customers control the system as a whole and obtain benefit from it,
`
`inter alia, the end users and customers download and run the TikTok app on a mobile device and
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`select the “For You” feed, and/or access the “For You” feed from a web browser, linking the user
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`to https://www.tiktok.com/foryou.
`
`69.
`
`Defendants have had actual notice that their recommendation system infringes the
`
`’030 patents since at least September 2, 2020, when Defendants received a copy of the original
`
`Complaint. After Defendants had actual notice that use of their recommendation system to view
`
`the “For You” feed infringes ’030 patent, Defendants continued to market the TikTok app with
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`instructions to end users and customers to use the accused system in an infringing manner.
`